Sex-Change Operation Leaves Kansas Man's Estate in Dispute

[TOPEKA, KS] - Three years after Marshall Gardiner died, his $2.5 million estate remains disputed by his wife, J'Noel Gardiner, and his son, Joe Gardiner. The issue under contention: Ms. Gardiner was a man, Jay Ball, before a sex-change operation in 1994, and Joe Gardiner said this rendered invalid his father's marriage to Ms. Gardiner.

After the unusual family feud wound its way through the Kansas court system, the state's Supreme Court in March ruled in favor of Joe Gardiner. The decision dashed the hopes of transgendered activists who hoped for a major, precedent-setting legal victory for the thousands of Americans who have undergone sex-change surgery.

Ms. Gardiner argued she legally changed her sex on her Wisconsin birth certificate, and told her late husband about it, so her marriage in Kansas should be legally binding; and, because Marshall Gardiner didn't leave a will, his spouse and heirs would split the estate equally. Joe Gardiner said his father was too conservative to agree to such a union, and that, regardless, Kansas doesn't recognize gender change for purposes of marriage; therefore, he should get the entire estate.

In 2000, a probate judge in Leavenworth County District Court ruled in favor of Joe Gardiner. The following May, though, a three-judge panel from the state's appeals court returned the case to district court, directing the lower court to consider several factors when deciding someone's gender, including gender rearing, sexual identity and sex-change surgery.

That directive was overruled by the Kansas Supreme Court. Its ruling defined gender based on a 1970 Webster's dictionary and, while expressing sympathy with Ms. Gardiner's predicament, concluded, "the validity of J'Noel's marriage to Marshall is a question of public policy to be addressed by the Legislature and not by this court."

Ms. Gardiner plans to appeal to the U.S. Supreme Court, though it is unlikely to accept the case. The gender definitions in the Kansas high court's ruling hinged on biology, to the chagrin of some. The decision quotes Webster's: "'Male' is defined as 'designating or of the sex that fertilizes the ovum and begets offspring: opposed to female.' 'Female' is defined as 'designating or of the sex that produces ova and bears offspring: opposed to male.'" This definition seems to call into question infertile men and women who have undergone hysterectomies.

"I thought the Kansas Supreme Court was really burying its head in the sand," said Jennifer Middleton, staff attorney at the Lambda Legal Defense [& Education] Fund, a civil-rights advocacy group for lesbians, gay men, bisexuals and transgendered people. The LLD[E]F filed a friend-of-the-court brief on behalf of Ms. Gardiner. "They had before them a woman who in every respect is a woman, and put her in a complete legal conundrum. ... Plenty of women who have had hysterectomies would be surprised to find that the Kansas Supreme Court perhaps does not consider them to be female.

"The Supreme Court was blinding itself to the reality that gender is made up of a variety of factors, not just anatomy and reproductive function. The most important of those is a person's deeply held feelings about who they are."

However, William M. Modrcin, Joe Gardiner's attorney, said the ruling was inevitable, based on Kansas state law. "I think the Supreme Court was hampered by the language of the legislature," Mr. Modrcin said. "They are absolutely positively correct, under the language of the statute." In particular, he points to the following passage: "The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex. All other marriages are declared to be contrary to the public policy of this state and are void." Mr. Modrcin referred to the second sentence and said, "The language they used in Kansas is pretty extreme. I think they made it clear, to the extent there were any gray areas, the marriage is invalid."

Sanford P. Krigel, Ms. Gardiner's lawyer, plans to petition the U.S. Supreme Court by June 15 to compel Kansas to recognize his client as a woman. The Kansas high court was the authority of last resort on the matter of gender, so Mr. Krigel plans to appeal on full-faith-and-credit issues. "What we're appealing is Kansas's courts' failure to recognize the Wisconsin birth certificate," Mr. Krigel said. "It's important that all states give full faith and credit to other states' documents, birth certificates, and court orders. Otherwise you have anarchy."

Should the case be heard by the Supreme Court in the 2002-3 term, Mr. Krigel may not even utter the words "transsexual" or "sex change," yet a ruling in Ms. Gardiner's favor would expand the rights of the approximately 30,000 people in the U.S. who have undergone sex-change surgery.

Currently, 19 states allow people to change their birth certificate-designated gender after a sex-change operation. Should Ms. Gardiner's appeal be successful, any transsexual who changes legal gender in those states would be allowed to marry a person of the opposite sex anywhere in the U.S. "It's an important issue the court will have to deal with," Mr. Krigel said. "Whether in 2002 or 2010, this issue will come up many times in the future. Thousands upon thousands are affected by this." Indeed, a similar, high-profile case is currently before a court in Florida, involving a transsexual man, Michael Kantaras, who is fighting with his estranged wife for custody of their children.

Mr. Krigel insists his client is pursuing the case for reasons beyond money. "The money is an issue, but I can guarantee it is a very minor issue, compared to what she perceives as a human-rights issue," Mr. Krigel said. Ms. Gardiner, a finance professor at Park University in Parkville, Mo., declined to be interviewed for this article, as did Joe Gardiner. However, on her Web site, Ms. Gardiner wrote, "To those who endure adversity and bigotry - (a) Never give up, (b) never give up, and (c) never give up! Fine Americans as my husband, Marshall G. Gardiner, believe this country is only as great as the diversity of those who are allowed to reap the harvest of their faith and labor."

Mr. Modrcin doubts the Supreme Court will accept the case. "I don?t think the Supremes will be anxious to thrust themselves into settling a Kansas statute," Mr. Modrcin said. "But it ain't over 'til it's over."

Ms. Middleton says that whatever the outcome of the Gardiner case, time will bring increasing acceptance of transsexuals and support for legal recognition of their gender change. "The surgery just started to become widespread in 1970s," she said. "We're just now seeing a generation of people who have undergone sex reassignment or self-identify as transgendered. As the general society becomes more comfortable, I think we'll see more and more acceptance."

On this count, even Mr. Modrcin tends to agree. He recalled, "I had one judge not involved in the case tell me, 'The law's on your side, but history?s on her side.'"